The Supreme Court heard arguments yesterday in one of the most important abortion cases since Roe v. Wade.
The Supreme Court heard arguments yesterday in one of the most important abortion cases since Roe v. Wade. mdgn/Shutterstock

In the Supreme Court arguments that began yesterday over Texas's restrictive abortion laws, all eyes are on Justice Anthony Kennedy. With four liberal justices clearly opposed to the restrictions, three conservatives likely to support them, and one conservative dead, the moderate Kennedy will be a very important swing vote.

One encouraging hint of where he may falling on this issue from Politico:

Justice Anthony Kennedy—the likely swing vote in Whole Woman's Health v. Hellerstedt, the most significant abortion case to reach the court in a generation—questioned whether the burdens imposed by the law might be unconstitutional because they outweigh medical benefits. The state law makes abortion clinics meet surgical center requirements and requires doctors performing abortions to have admitting privileges at a nearby hospitals.

But Kennedy's stance is still unclear. While he was one of the authors of a 1992 decision saying abortion restrictions couldn't place an "undue burden" on women seeking the procedure, he spent much of yesterday's argument, as NPR's Nina Totenberg put it, "looking for a way out."

For much of today's argument, Justice Kennedy seemed to be looking for a way out. Is the new law really responsible for shuttering 20 clinics? Could the court send the case back to the lower courts from further fact-finding? The problem was, as the court's female justices pointed out over and over again, there's already been a lot of fact-finding in the case. The argument opened with Chief Justice Roberts and Justice Alito, two justices deemed hostile to abortion rights, repeatedly questioning whether the clinic closures really were the result of the law's restrictions.

The court's liberal women, meanwhile, killed it.

If Kennedy joins the four liberals in opposition to the restrictions, the court could strike down the Texas law. If the court splits 4-4, the law would be upheld. (The good news is a tie would default to a lower court's decision upholding this law, meaning it wouldn't set a national precedent. It could embolden other states to pass similar laws, though.)

The court's decision is expected in June, which, as the New York Times points out, will be just "as the presidential campaign enters its final stretch, thrusting the divisive issue of abortion to the forefront of public debate."